State accuses school lawyer of conflict

Published 4:00 am, Tuesday, April 21, 1998

1998-04-21 04:00:00 PDT SAN FRANCISCO; CALIFORNIA -- The lead attorney in San Francisco Unified's suit against the state to block the testing of immigrant children should be disqualified from the case because he worked as an attorney in the education department for 13 years, according to a motion filed in federal court.

The day after Symkowick was granted a one-year leave of absence on Jan. 30 from the Department of Education, where he served as general counsel, he went to work for the San Francisco Unified School District.

His first job: to craft and file a lawsuit on behalf of The City's public schools against the state Department of Education, Board of Education and the state superintendent - his employers of the week before.

The school district contends that administering an English-only exam - the so-called STAR test - to students who lack English skills is a civil rights violation and will yield invalid results. The suit seeks to exempt from testing more than 5,700 students in the district who speak little or no English.

"Symkowick has such a clear conflict of interest that he is incapable of serving as counsel for the district," said Sean Walsh, Gov. Wilson's spokesman. "It is wholly inappropriate that Symkowick would be on a leave of absence from a department which is filing suit against a client he represents."

"Go after the attorney'&lt;

Symkowick, who has been practicing law for 25 years, said Monday he sees nothing improper in his representing San Francisco in its suit against the Department of Education. He suggested the motion is an attempt to divert attention from the legal merit of the case.

"The old adage is, "If you don't have the law, you go after the attorney,' " Symkowick said. "We would like to keep the case focused on the law, which says you can't test limited English-proficient kids with an English language achievement test."

Symkowick said conflict of interest arises only when an attorney does something that hurts a former client by virtue of using secret or confidential knowledge.

"I am not using confidential information. I had no confidential conversations about the test," Symkowick said. "I never advised the department on the test. As of August, I had no relation with the state board nor with (board executive director) Bill Lucia."

The motion to disqualify Symkowick, however, states that he did advise the state Board of Education "extensively on testing issues," that he attended confidential closed-session board meetings and that he discussed the implication of testing on minority students.

"If Joe were general counsel for 13 years and received no confidential information, that would be inconceivable," Walsh said. "This is one of the biggest issues involving the department. Besides, we have three sworn statements from employees who said they had confidential communications with Joe on the exact state testing program involved here."

Oakland attorney David Hicks, who has worked on conflict-of-interest cases, called the motion a

"no-brainer."

Alleged appearance of impropriety&lt;

He predicts the motion will be granted in "about 10 seconds."

"You can't operate within the confidentiality of client-attorney privilege and then, imbued with that absolutely secret knowledge, represent someone else against the client," Hicks said. "This sort of thing also undermines the public's confidence in the legal profession because there's an appearance of impropriety."

Symkowick said that he was still reviewing the motion and that he will step aside if he determines there is a conflict of interest. He said, "I'll be the first one to leave."

The motion to disqualify Symkowick was one of three filed by the Department of Education last week. The others seek to dismiss San Francisco Unified's suit as "meritless on the matter of law" and, if that fails, to advance the hearing date to early May.

The new assessment test for grades 2 through 11 is under way in districts throughout the state. San Francisco is scheduled to begin testing English-proficient students May 4. The deadline for testing is May 22.&lt;